Karnataka High Court
The State Of Karnataka vs Ramesha on 2 November, 2023
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NC: 2023:KHC:39011
CRL.A No. 15 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 15 OF 2022
BETWEEN:
THE STATE OF KARNATAKA,
REP. BY CIRCLE INSPECTOR,
TUNGANAGARA POLICE STATION,
REP. BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE - 560 001.
...APPELLANT
(BY SRI. M.R. PATIL, SPP)
AND:
1. RAMESHA,
S/O. H. RAMEGOWDA,
Digitally signed AGED ABOUT 49 YEARS,
by SANDHYA S
Location: High
Court of
R/O. SRIRAMANAGARA,
Karnataka
SANTHEKADUR,
SHIVAMOGGA - 577 222.
2. MURTHY,
S/O. GANGADHARAPPA,
AGED ABOUT 38 YEARS,
R/O. CROSS, INDIRANAGARA,
SHIVAMOGGA - 577 202.
3. SRI. KIRAN,
S/O. MUNISWAMY,
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CRL.A No. 15 of 2022
AGED ABOUT 29 YEARS,
R/O. CROSS, INDIRANAGARA,
SHIVAMOGGA - 577 202.
4. SRI. GOPI,
S/O. TANGARAJ,
AGED ABOUT 32 YEARS,
R/O. CROSS, INDIRANAGARA,
SHIVAMOGGA - 577 202.
5. SRI. MURTHY,
S/O. RAMEGOWDA,
AGED ABOUT 42 YEARS,
R/O. ANTHARANGANGE,
BHADRAVATHI TALUK - 577 245.
6. SRI. ANANDA,
S/O. TANGARAJ,
AGED ABOUT 45 YEARS,
R/O. ANTHARANGANGE,
BHADRAVATHI TALUK - 577 245.
7. SRI. CHELUVA,
S/O. VEERABHADRAPPA,
AGED ABOUT 35 YEARS,
R/O. DODDERI, ANTHARANGANGE,
BHADRAVATHI TALUK - 577 245.
8. SRI. MURUGA,
S/O. RAMASWAMY,
AGED ABOUT 46 YEARS,
R/O. SULEBAILU, 9TH CROSS,
SHIVAMOGGA TALUK - 577 201.
9. SRI. SUBRAMANI,
S/O. NARASHIMAPPA,
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CRL.A No. 15 of 2022
AGED ABOUT 44 YEARS,
R/O. INDRANAGAR, MARTURU ROAD,
SHIVAMOGGA TALUK - 577 201.
...RESPONDENTS
(BY SRI. GIRISHA K.V., ADVOCATE FOR
SRI. DILIP KUMAR, ADVOCATE FOR R1 TO R9)
THIS CRL.A IS FILED U/S.378(1)(3) OF CR.P.C PRAYING
TO A. GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 09.06.2021 PASSED BY THE
LEARNED PRL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA
IN S.C.NO.102/2019 THEREBY ACQUITTING THE
RESPONDENTS FOR THE ALLEGED OFFENCE P/U/S
379,308,420 OF IPC AND SEC.5 OF EXPLOSIVE SUBSTANCES
ACT AND SEC.9B OF EXPLOSIVES AT AND SEC.44 OF
KARNATAKA MINOR MINERAL CONCESSION RULE AND SEC.21
OF MMDR AND SEC.47 OF EXPLOSIVES RULE AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this case is posted for admission, with the consent of both the counsel it is taken for final hearing.
2. The appellant State has preferred this appeal against the judgment of acquittal dated 09.06.2021 passed in SC No.102/2019 by Learned Principal District and Sessions Judge at Shivamogga.
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022
3. The rank of the parties in this appeal are referred in the same rank as referred by the Trial court.
4. The brief facts of the prosecution are that, The complainant is by one Sri.Gangadharappa (PW- 1 CPI of Shivamogga Rural Circle) contending that, on 04.07.2015 at about 01.15 P.M, he received credible information about illegal mining of stone by using explosive substances with the help of compressor of tractors in the quarry of accused No.1 situated between Indiranagar and Matturu Villages. The complainant and his staff went to the said spot at about 01.30. PM; noticed the drilling of holes in the rock with the help of compressor machines attached to two tractors and filling the explosives i.e. cape, gelatin and ammonium sulphate in the said holes and when enquired with accused No.2, he informed him that he is the driver of vehicle bearing Reg.No.KA-14/M-124 and accused No.6 and 7 were drilling the stones and accused No.8 is the owner of tractor and accused No.3 is present in the another tractor as driver, accused No.4 was found drilling the stone, accused No.9 was found filling the explosives to the holes. Therefore, all the accused in common -5- NC: 2023:KHC:39011 CRL.A No. 15 of 2022 intention, were illegally mining the stones in order to have wrongful gain and to cause loss to the government exchequer and committed the said acts by knowing fully well that their act was endangering human lives. Accordingly, he lodged complaint to the Tunganagar Police station. The police registered FIR in crime No.317/2015 for the offence punishable under Sections 379, 308 and 420 of IPC and Section 5 of Explosive Substances Act, 1908 and Section 9B of Explosives Act 1884 and Section 44 of Karnataka Minor Mineral Concession Rules 1994 and Section 21 of MMDR (Mines and Minerals Regulation of Development) Act, 1957 and Section 47 of Explosives Rules, 2008.
5. After investigation, IO has submitted the charge sheet against the accused/respondent against the aforesaid offences. After committal of case, case is registered in SC NO.102/2019. After securing the presence of accused charge was framed by the trial Court for the alleged offences. The accused pleaded not guilty and claimed to be tried. To prove the case of the prosecution, 8 witnesses were examined as PW1 to PW8 and 20 documents were marked as Ex.P1 to Ex.P.20 and nine material objects were marked as MO1 to 9. -6-
NC: 2023:KHC:39011 CRL.A No. 15 of 2022 On completion of prosecution side evidence, the accused was questioned as to the incriminating evidence against him as required under Section 313 of Cr.P.C Accused has totally denied the evidence appearing against him, but he did not adduce any defence evidence on his behalf. On hearing arguments on both the sides the trial court has passed impugned Judgment of acquittal. Being aggrieved by this interim Judgment of acquittal the State has preferred this appeal.
6. Sri.M.R.Patil The learned HCGP appearing on behalf of the State, submitted that the impugned judgment of acquittal passed by the trial court is contrary to law and evidence on record and the same is liable to be set aside. The learned trial judge has committed an error in acquitting the respondents without appreciating the entire evidence on record, even after corroborating with the evidence of other witnesses in accordance with law and facts. On all these grounds sought for allowing this appeal.
7. Learned counsel appearing on behalf of respondents submitted that, the trial Court has appreciated the evidence on record in accordance with law and facts. There are -7- NC: 2023:KHC:39011 CRL.A No. 15 of 2022 no grounds to interfere with Judgment of Acquittal. On all these grounds sought for dismissal of this appeal.
8. Having heard the arguments on both the sides and on perusal of records, the following points would arise for my consideration.
1. Whether the State has made out grounds to interfere with judgment of acquittal passed by the trial Court.
2. What Order?
9. My finding to the above are as under
Point No.1 Negative Point No.2 As per final order Reg.Point No.1:
10. I have carefully examined the material on records. The case of the prosecution is, that the complainant is one Sri.Gangadharappa (PW-1 CPI of Shivamogga Rural Circle) It is contended that, on 04.07.2015 at about 01.15 P.M, he received credible information about illegal mining of stone by using explosive substances with the help of compressor of -8- NC: 2023:KHC:39011 CRL.A No. 15 of 2022 tractors in the quarry of accused No.1 situated between Indiranagar and Matturu Villages. The complainant and his staff went to the said spot about 01.30. PM., noticed the drilling of holes in the rock with the help of compressor machines attached to two tractors and filling the explosives i.e. cape, gelatin and ammonium sulphate in the said holes and upon enquiry, accused No.2 informed him that he is the driver of vehicle bearing Reg.No.KA-14/M-124 and accused No.6 and 7 were drilling the stones and accused No.8 is the owner of tractor and accused No.3 is present in the another tractor as driver, accused No.4 was found drilling the stone, accused No.9 was found filling the explosives to the holes. Therefore, all the accused, in common intention, were illegally mining the stones in order to have wrongful gain and to cause loss to the government exchequer and committed the said acts by knowing fully well that their act was endangering human lives. Accordingly, he lodged complaint to the Tunganagar Police station. The police registered the FIR in crime No.317/2015 for the offence punishable under Sections 379, 308 and 420 of IPC and Section 5 of Explosive Substances Act 1908 and Section 9B of Explosives Act 1884 and Section 44 of Karnataka Minor -9- NC: 2023:KHC:39011 CRL.A No. 15 of 2022 Mineral Concession Rules, 1994 and Section 21 of MMDR (Mines and Minerals Regulation of Development) Act, 1957 and Section 47 of Explosives Rules, 2008.
11. To substantiate the case of the appellant case of prosecution has examined 8 witnesses as PW1 to PW8. 20 documents were marked at Ex.P1 to Ex.P20 and 9 material objects are marked at Ex.P1 to Ex.P9. In para Nos.29 to 33, trial Court has observed as under:-
"29. According to the prosecution, PW1 received credible information about the illegal quarrying of stones in the land of accused No.1 by using explosives illegally. Both PW1 and 6 have deposed that they along with other staffs and panchas reached the spot and parked their official vehicle at a distance of 50 meters and found some persons were engaged in illegal quarrying by filling ammonium nitrate and detonator capes to the holes in the big boulders. According to PW1, he reached the spot and apprehended accused Nos.2 to 5 and accused Nos.6 to 9 allegedly escaped from the spot after witnessing the police in the other directions. Pw1 has deposed that he noticed drilling of holes in the rocks and filling of explosives for the purpose of blasting at two places at the spot. But
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 surprisingly, the chief examination of PW1 is totally silent about the survey number of the land where he allegedly found illegal quarrying by use of alleged explosives. According to PW1, he seized MO1 to 9 from the spot under Mahazar as per Ex.P2 and surprisingly, this Ex.P2 is also silent about the survey number of the land where he allegedly conducted seizure of MO1 to 9 as well as the tractors with compressors. PW1 has reflected the boundaries of the alleged spot in Ex.P2, but even in the boundaries also, the survey numbers are not specifically shown. Therefore, the evidence of PW1 and the document at Ex.P2 are totally silent as to the exact place of occurrence as alleged by the prosecution. At this juncture, if the cross examination directed to PW1 is perused, it is brought on record that he did not secure any document pertaining to Sy.NO.106 of Matturu Village to establish that the alleged place of occurrence comes within the said survey number. Interestingly, PW1 has also pleaded ignorance about the total extent of land in Sy.No.106. At this juncture, it is necessary to mention that PW1 is not only the 1st informant in the present case. But also has conducted entire investigation and he did not choose to secure necessary documents about Sy.No.106 in order to establish that the alleged quarrying was undertaken by the accused persons
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 in the government land. It is worth mentioning here that PW1 himself admits that accused No.1 is owning 20 guntas of land in Sy.No.106 and evidence of PW1 as well as the documents placed on record by the prosecution, are also silent as to in which part of the land the alleged quarrying was under progress at the time of raid. There is no evidence placed on record by the prosecution to establish that the accused No.1 was illegally quarrying the stones in his admitted 20 guntas of land or in the remaining portion of the Sy.No.106. Therefore, where exactly the alleged illegal quarry was under progress is not made clear by the prosecution.
30. This apart, it is further pertinent to note that, according to the prosecution, the accused No.1 was carrying illegal quarrying without obtaining any license from the concerned department. The prosecution has relied on the evidence of PW4 on this aspect and this PW4 being the Senior Geologist in the department of mines and geology, Shivamoga, at the relevant point of time, has deposed that he received the requisition from PW1 seeking particulars of SyNo.106 of Matturu Village and he verified the records and gave his report as per Ex.P3 stating that the accused No.1 has not obtained license to quarry
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 the stones by using explosives and at par.3 of his chief examination. PW4 has also deposed that the accused No.1 did not produce any documents before him about the license as well as the use of explosives. According to the evidence of PW4, he gave the report at Ex.P3 on the basis of the alleged records and he has no personal knowledge about the illegal quarrying by use of explosives by accused No.1. The very evidence of PW4 to the effect that accused NO.1 did not appear before him and produce any documents about the issuance of license to use explosives itself suggest that only due to the non-appearance of accused No.1, this PW4 went on to issue the report at Ex.P3 stating that the accused No.1 is not authorized to quarry stones by his department by use of explosives. PW4 has not made clear that before issuing his report at Ex.P3, he made any attempt to secure accused No.1 by using notice and calling upon him to produce any documents in his possession in proof of quarrying as well as the use of explosives. Without giving any such opportunity to accused No.1, PW4 has issued the report at Ex.P3 only on the basis of the available records.
31. This apart, it is further pertinent to note that PW4 in his cross examination admits that he has also not mentioned the total extent of land in
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 Sy.No.106 in his report at Ex.P3. He plead ignorance about the number of persons to whom the licenses are issued by his department to conduct quarry in Sy.No.106 ad so also, plead ignorance about the personal identity of accused No.1. These admissions elicited from the mouth of PW4 also clearly suggest that he without conducting proper inquiry, has issued the report at Ex.P3 and his own evidence creates doubt about the contents of Ex.P3.
32. This apart, it is further pertinent to note that PW4 in his cross examination at para.5 admits that his department issued license bearing NO.QL546/R1 in favour of accused No.1 for a period of 20 years with effect 12.03.2007 till 11.03.2027. According to the prosecution case, the incident allegedly took place on 04.07.2015 which is within the admitted validity period of the license issued in favour of accused No1. At this juncture, if Ex.P3 is perused, this document also reveals that the accused No.1 was issued with license bearing No.DMG/SMG/QLS/546/0607 dated : 12.03.2007 by the department of Mines and Geology initially for a period of 5 years till 11.03.2012 and thereafter, the license was renewed upto 15.12.2014 and as on the date of alleged incident, the accused No.1 had no such license. But the
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 admission of PW4 also falsifies the contents of Ex.P3. The accused have come up with the defence that there was no quarrying of stones in Sy.No.106 for about 3-4 months prior to the alleged registration of case and that the accused No.1 was not indulged in any illegal quarrying by the use of explosives and even no photographs of the alleged scene of occurrence is taken by PW1 to establish that he noticed the illegal quarrying activities at the time of the alleged raid. PW1 in his evidence, has admitted that he did not take photographs of the spot during his investigation. It is necessary to mention that according t o PW1 that he noticed drilling of 60 holes and also noticed that 40 holes were filled with explosives. But for the reasons best known to him. PW1 did not choose to take the photographs to establish the illegal quarrying activities at the spot. Further, PW1 being the 1st informant, himself has investigated the entire case and why he did not hand over further investigation to other police officer to avoid any prejudice against the accused persons is also not made clear by the prosecution. Though PW6 has corroborated the evidence of PW1 about the alleged seizure, but admittedly he is not a signatory to Ex.P2 and there is nothing placed on record to establish that this PW6 in fact accompanied PW1 for the alleged raid and seizure. According to PW1 he did not seize the
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 explosives which were filled in the holes, but PW6 has deposed that the samples were collected from the holes in the surface of the quarry. Therefore, there are material contradictions in the evidence of PW1 and 6 with regard to the seizure of alleged explosives from the holes drilled in the rocks.
33. Further, there is no material placed on record to establish that the alleged place of occurrence comes within in the Government land and even there is no evidence available on record to establish in which part of Sy.No.106, the alleged place of occurrence was found. Interestingly, the record of rights of the said land is also not collected by the investigating officer and produced before the court which is fatal to the case of prosecution. The investigation conducted by PW1 is appears to be perfunctory and superfluous. Therefore, there is no evidence placed on record by the prosecution to establish the alleged illegal quarrying by the accused persons and illegal used of explosives by them in Sy.No.106 of Matturu village does not inspire the confidence of this court. Except the oral and interested testimony of PW1 and PW6, there is no independent and corroborative material placed on record by the prosecution. The ingredients of the offences alleged against the accused are missing in the material placed on record by the
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NC: 2023:KHC:39011 CRL.A No. 15 of 2022 prosecution. The ingredients of the offences alleged against the accused are missing in the material placed on record by the prosecution. As such,I have no hesitation to hold that the prosecution has failed to establish the guilt of the accused beyong all reasonable doubts. Hence, I record my finding on Point Nos.1 to 8 in the 'NEGATIVE'."
12. It is well settled that where on the evidence, if two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The Hon'ble Supreme Court in the case of KALI RAM v. STATE OF HIMACHAL PRADESH, reported in (1973)2 SCC 808, has observed thus:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."
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13. On re-appreciation/re-consideration and re- examination of all the prosecution witnesses with documentary evidence, I do not find any illegalities and infirmities in the impugned judgment of acquittal passed by the trial Court. Hence, I answer point No.1 in negative.
Point No.2:
For the aforesaid reasons I proceed to pass the following:
ORDER Appeal is dismissed.
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JUDGE RCK List No.: 1 Sl No.: 49 CT:SNN